Dhanna vs Sher Mohammad

V.R. Newaskar, J.—This appeal involves the questions as to the proprety of an order dismissing an appeal for non-prosecution.

The material facts are that the Defendant-Appellants had preferred an appeal in the Court of District Judge Ujjain against the decree granted by the trial Court in favour of the Plaintiff Respondent Shermohammad. This appeal was fixed for hearing on 10-1-1961. The case was called first at 11 A.M. when the Appellants were absent as also their counsel. The appellate Court waited for some time when at 11.20 A.M. the Appellants'' counsel Shri Shantiswarup appeared. It appears that the Court then must be busy with other work. Mr. Shantiswaroop waited for one or two minutes and then went away. The case was later again called number of times upto 11.50 A.M. when Shri Shanti swarup again appeared and expressed before the Court his difficulty that his clerk had not come with the brief. The Court agreed to wait up to 12 noon. The conunsel did not appear till 12.10 P.M. He then came and requested for an adjournment. This was refused and the appeal was dismissed for non-prosecution. The Appellants then applied under Older 41 Rule 10 C. P. Code.-for restoration of the appeal as having been dismissed for default alleging that the clerk of Shri Shantiswaroop fialled to get accommodation in the bus and he was consequently delayed and a prayer for adjournment had been refused. The application was opposed on the ground that the same was not maintainable in law. The learned District Judge thought that the dismissal should have been under Order 41 Rule 11 (2) C. P. Code in order to attract the procedure of restoration under Order 41 Rule 19 C.P. Code. He held that in as much as the dismissal of the appeal was not for failure of the Appellants to appear since their counsel. Shri Shantiswaroop was present at the hearing, power under Order 41 Rule 19 C. P. Code could not be exercised. The learned Judge went on to suggest, though quite unnecessarily, that the proper remedy was by way of an appeal. The application was consequently dismissed.

This appeal is directed against that order.

It is contended on behalf of the Appellants that although Shri Shantiswaroop had appeared he had done so without a brief. The court below, it is said, has expressed no opinion on the sufficiently of reasons for the inability of the counsel to proceed with the appeal. It must therefore he assumed for the purpose of this appeal that the reasons are true. In case this Court holds, it is submitted, that the refusal to exercise jurisdiction was not proper the matter can be remanded for considering the propriety of the alleged sufficient cause. The counsel''s presence in this case should be taken to be tantamount to non-appearance as without a brief it was not possible for him to proceed with his argument. The application for restoration under Order 41 Rule 19 was therefore competent.

On the other hand it is contended on behalf of the Respondent that the order of dismissal in this case is distinctly not for nonappearance of the Appellants but for non-prosecution. Such an order is not without jurisdiction as it is capable being passed under the Court''s inherent powers. In that event an application for restoration under Order 41 Rule 19 C. P. C. is not competent. The application for restoration, it is submitted, wrongly mentioned Order 41 Rule 90 C. P. C. as the provision under which the power of restoration could have been exercised by the Court although the Court below read it as meaning Order 41 Rule 19 C. P. Code.

In my opinion there have been errors on the part of the Court as well as the parties. The appellate Court erroneously assumed that power under Order 41 Rule 19 C. P. C. can be exercised only when the dismissal is under Order 41 Rule 11 (2). This last mentioned provision provides for dismissal of an appeal for default before the Respondent is called upon to appear that is when the appeal is to be heard summarily. Moreover Order 41 Rule 19 applies not only when the dismissal is under Order 41 Rule 11 (2) but also under Order 41 Rule 17 and 18 C. P. C. In the present case the Respondent had been served after the admission of the appeal and his counsel Shri Paul was present when the case was called on for hearing. Order 41 Rule 11(2)under the circumstances was wrongly referred to by the learned Judge while refusing to restore the appeal. The Appellants also erroneously referred to Order 41 Rule 90 as the provission under which the application for restoration was made. The Respondent failed to notice that refernce to Order 41 Rule 90 was erroneous and contended that an application under that provision was not maintainable.

Leaving all these erroneous references to the provisions of law if we examine the circumstances under which the order was made it seems clear that the order dismissing the appeal was passed because the Appellant''s counsel Shri Shantiswaroop was unable to prosecute appeal as he bad no brief when the case was called on for hearing. Can this appearance be called his non-appearance. If it not be so called then the dismissal of the appeal could not have been under Order 41 Rule (sic) which was the appropriate provision which the learned Judge should have referred to and not Order 41 Rule 11(2). The learned Judge accepts the fact that there was no decision on merits yet he says that the proper remedy was by way of an appeal. Now there are no doubt decisions including those of this Court that where the counsel alone appears and prays for adojournment and on refusal reports no instructions the case should be taken to be one in which there was non-appearance of the party and his counsel and an application for restoration is competent. But in this case neither the proceedings in the suit nor the allegations in the application for restoration indicate that the counsel Shri Shantiswaroop at any point of time reported no instructions, His inability to argue the appeal appeared to be due to the alleged circumstance that his clerk has failed to come in Court in time with the brief as he failed to secure accommodation in the bus bound for the Court. Can an appearance of the counsel under these circumstances and in the absence of any statement that he had no instructions be called the non-appearance so as to justify an order of dismissal of the appeal for default under Order 41 Rule 17. In case Order 41 Rule 17 applied an application for restoration under Order 41 Rule 19 would be competent but if it did not then the order of dismissal, in the absence of any other specific provision could only have been under the inherent power of the Court. In that case an application for restoration also, in appropriate cases be competent under that very provision.

In AIR 1949 East Punjab 86 (87) Rup rani Devi V. Christopher Southern Lewis, it was held by Teja Singh and Khosla JJ., relying upon the decisions in ILR 16 Bombay 23 Ramchandra Pandurang Naik v. Madhav Purushottam Naik and AIR 1940 Allahabad 248 Mathura Das v. Narain Das, that the case of counsel who says that he is unable to act on his client''s behalf is wholly different from that of one who states that he has no instructions. The two cases according to them are wholly distinct from each other. They observed:

The scope of the authority of a counsel who is engaged by his client to represent him in a case is limited to the instructions given to him. These instructions may be either to put in appearance on his client''s behalf or to act for him. When a counsel asserts that he has no instructions, the inference is that he has no instructions even to appear on his client''s behalf, so his appearance is considered as tantamount to no appearance. But when a counsel appears and states that he is not able to do a particular act, he cannot be taken to mean that he has no instructions to perform that act. On the other hand, I would take him to mean that though he had been instructed to perform that act, something has happened which his disable him from doing it, or he has otherwise failed in his duty in spite of the instructions. In any case counsel''s inability to do a particular act in the conduct of the case cannot be ascribed to want of instructions unless he says so expressly.

7, In cases reported in ILR 16 Bombay 23 Ramchandra Pandurang Naik v. Madhav Purushottam Naik. AIR 1949 East Punjab 86 Ruprani Devi v. Christopher Southern Lewis and AIR 1940 Allahabad 248 Mathura Das v. Narain Das, the Appellant''s counsel could not proceed with the appeal due to their unpreparedness. In all these cases it was held that the dismissal of the appeal was not under Older 41 Rule 17 and Order 41 Rule 19 was inapplicable. In AIR 1940 Allahabad 248 Mathura Das v. Narain Das, it was held differing from the view taken by a single Judge of that Court in a case reported in AIR 1937 Allahabad 284 Mohammad Hussain v. Mt. Chandro that the Court in such a case was not bound to write a judgment on merits after going through the record. They agreed with the single Judge of that Court in the earlier case referred to above that the dismissal in such a case could not have been under Order 41 Rule 17. It seems from these decisions that the order of dismissal in such cases is not under Order 41 Rule 30 but can, in the absence of any specific provision, be only u/s 151 C. P. C. which is the only source of its residuary power. In that case where there are proper grounds, restoration is competent only under that provision. It cannot be said to be axiomatic that in all cases where the counsel (sic) not prepared to proceed with an appeal that this must be due to his gross negligence justifying his being solely held responsible for the dismissal of the appeal and cases of accidental circumstances disabling a counsel to prosecute the appeal are conceivable. It is therefore a question of fact in each case whether the inability of the counsel for prosecuting the appeal was for reasons which were good and sufficient or otherwise. If the reasons be good what is the remedy? There is no specific provision entitling him to seek restoration as there is no specific provision for dismissal of the appeal for non-prosecution and the source of power in each case would be u/s 151 C. P. Code.

In this case erroneous rule namely Order 41 Rule 90 was mentioned as the rule but the facts were stated. It was therefore competent for the Court to resort to appropriate power which it failed to do thinking that the remedy is by way of appeal as against a decree. But the further question then is whether the present appeal is competent under Order 43 Rule 1 (t) when the order refusing to restore is not one under Order 141 Rule 19. The obvious answer is No. But in my opinion since the Court could have considered the sufficiency of reasons for restoration in exercise of its powers u/s 151 but failed to do so thinking that it had no jurisdiction a revision petition is competent.

I would therefore permit this appeal to be pressed as revision as no question of limitation or jurisdiction is involved and allow the same. I would further direct the lower appellate Court to consider the propriety of counsel''s inability or unpreparedness to prosecute the appeal that is to argue the same and thereafter dispose of the application for restoration treating it as one u/s 151 C. P. Code. As the Appellant has failed to take an appropriate step in choosing an appropriate remedy I would leave parties to bear their costs. The appeal shall be treated as a revision petition and be registered as such.